President Obama’s speech to the nation tonight, September 10, was a weak speech, reflecting the confusion in his head and in the administration about what to do in Syria following the use of chemical weapons by government forces in Ghouta on August 21, 2013.

There are two problems in Syria.

The first problem is the vast amount of chemical weapons that al-Assad has amassed over the years, and the risk that they could be used by the Syrian government again against the Syrian people (or other countries), together with the very real risk that they might fall into the hands of al-Qaeda affiliates such as the al-Nusra Front or other terrorist groups.

The Russian proposal–on its face–would solve this problem, but would require al-Assad or his government successors to remain in power to implement the provisions placing chemical weapons under international control and providing for their destruction. This process would be likely to take years.

Signs that the Russians are simply engaging in one more ploy to delay international action against al-Assad include their dismissal out of hand today of a proposed French draft resolution for presentation to the Security Council with strong provisions under the authority of Chapter VII of the Charter. The Russian foreign ministry issued a statement saying Russia didn’t think a Security Council resolution was needed. Rather, a (legally meaningless) Presidential Statement taking note of the agreement would suffice, he suggested. By these statements, Lavrov appeared to tip his hand.

In addition to Lavrov’s rejection of U.N. authorization of the use of force, a Russian Foreign Ministry statement indicated that Moscow does not want a Security Council resolution at all. Instead, the statement said, Russia envisions a statement by the council’s president — who rotates and is now an Australian representative — that would “welcome” the plan to monitor and ultimately destroy Syria’s chemical weapons and call on “interested parties” to carry out the plan.
–Colum Lynch and Karen DeYoung, “Kerry, Lavrov to meet on Russian proposal after Russia balks at plan for U.N. action,” Washington Post, September 10, 2013 (updated 6:45 p.m.).

This is the same formula (legally meaningless “Presidential statements”) the Russians used with such great success in getting Kofi Annan’s “mediation” mission up and running. That mission bought them and al-Assad a great deal of time, at the cost of tens of thousands of Syrians killed by al-Assad’s further war crimes and crimes against humanity.

Without a binding Security Council resolution under Chapter VII of the U.N. Charter deciding (ordering) that the chemical weapons’ surrender and demolition will take place, the Russian proposal is a non-starter. The United States and the West and Arab countries don’t have any more time to play the Russian game of waiting and delay while al-Assad accepts or doesn’t accept this or that provision of this or that proposal.

There is an important distinction, however, which could make a Chapter VII resolution more palatable to the Russians. There is a difference between adoption of measures by the Security Council and “enforcement acton” involving force or economic santions to ensure they are implemented.

Chapter VII gives the Security Council the authority to adopt legally binding measures necessary to maintain international peace and security which otherwise would require the consent of the nation concerned.

These measures can include the establishment of a binding chemical weapons regime in Syria which is not dependent on al-Assad’s assent.

The fear of the Russians is that such a resolution might be used as a pretext by the West to justify a military attack on Syria, should al-Assad fail to comply with the terms of the resolution. While such a possibilty might be desirable, if it becomes a stumbling block there is always the alternative of alleviating Russian and Chinese concerns by specifically providing in the resolution that no “enforcement action” may be taken by any state without the specific subsequent authorization of the Security Council. There, Russia and China would continue to have a veto.

Such a provision was in fact included in draft resolutions which were vetoed by Russia and China in 2012. However, the circumstances have now changed. Whether such a concession by the West may be required to strike a deal will have to be decided within the Security Council.

The second problem in Syria is that the al-Assad government continues to commit war crimes and crimes against humanity on a massive scale (bombing civilian neighborhoods, for example), while the country is in the grip of a very bloody civil war which over time is reducing the nation to a pile of rubble similar to that in Berlin in 1945.

Not surprisingly, President Obama said very little in his speech tonight about this second problem, and the atrocities over the last two and a half years for which the Syrian government is responsible.

The Russian solution to the first problem would solve a big problem for outside powers like Russia and the United States, but would do nothing to solve the second problem–and indeed might even aggravate it as a result of the implicit need for the Syrian government to remain in power to implement the provisions of the chemical weapons regime.

Moreover, it is important that any Security Council resolution solving the first problem of chemical weapons not establish a “safe harbor” within which al-Assad can continue with impunity the commission of war crimes and crimes against humanity on a vast scale.

Ideally, in order to address the second problem as well as the first, the Security Council resolution to be adopted would contain additional provisions relating to the commission of war crimes and crimes against humanity—(at least) going forward—by any of the parties, and other provisions to set in motion a process aimed at the establishment of a ceasefire at the earliest possible moment–before any discussion of final arrangements is negotiated.

The idea of convening a Geneva II conference while the fighting continues is a bad one, and is not likely to lead to real results any time soon—as most if not all of the parties understand.

The bottom line is that the Russian proposal is meaningless without a binding Security Council resolution.

That resolution should also have forward-looking provisions that might lead to a ceasefire and an end to the fighting, as a condition precedent to negotiations over any final arrangements.

Obama must somehow secure Congressional approval of a plan which will allow him to vigorously and effectively pursue the objectives outlined above.

About the Author

"The Trenchant Observer" is edited and published by The Observer, an international lawyer who has taught International Law, Human Rights, and Comparative Law at major U.S. universities, including Harvard, Brandeis, the University of Pittsburgh, and the University of Kansas.
He is a former staff attorney at the Inter-American Commission on Human Rights of the Organization of American States (IACHR), where he was in charge of Brazil, Haiti, Mexico and the United States, and also worked on complaints from and reports on other countries including Argentina, Chile, Uruguay, El Salvador, Nicaragua, and Guatemala.
As an international development expert, he has worked on Rule of Law, Human Rights, and Judicial Reform in a number of countries in Latin America, the Caribbean, Africa, the Middle East, South Asia, and the Russian Federation.
In the private sector, The Observer has worked as an international attorney for a leading national law firm and major global companies, on joint ventures and other matters in a number of countries in Europe (including Russia and the Ukraine), throughout Latin America and the Caribbean, and in Australia, Indonesia, Vietnam, China and Japan.
The Trenchant Observer blog provides an unfiltered international perspective for news and opinion on current events, in their historical context, drawing on a daily review of leading German, French, Spanish and English newspapers as well as the New York Times, the Wall Street Journal, the Washington Post, and other American newspapers, and on sources in other countries relevant to issues being analyzed.
The Observer speaks fluent English, French, German, Portuguese and Spanish, and also knows other languages.
He holds an S.J.D. or Doctor of Juridical Science in International Law from Harvard University, and a Doctor of Law (J.D.) and a Master of the Science of Law (J.S.M.), from Stanford University. As an undergraduate, he received a Bachelor of Arts degree, also from Stanford, where he graduated “With Great Distinction” (summa cum laude) and received the James Birdsall Weter Prize for the best Senior Honors Thesis in History.
In addition to having taught as a Lecturer on Law at Harvard Law School, The Observer has been a Visiting Scholar at Harvard University's Center for International Affairs (CFIA). His fellowships include a Stanford Postdoctoral Fellowship in Law and Development, the Rómulo Gallegos Fellowship in International Human Rights awarded by the Inter-American Commission on Human Rights, and a Harvard MacArthur Fellowship in International Peace and Security.
Beyond his articles in The Trenchant Observer, he is the author of two books and numerous scholarly articles on subjects of international and comparative law. Currently he is working on a manuscript drawing on the best articles that have appeared in the blog.

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